DANA MARIE GOETZ v. THOMAS EDWIN GOETZ

CACV 198/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 198 OF 1999

(ON APPEAL FROM FCMC NO. 8382 OF 1994)

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J U D G M E N T

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Rogers, J.A. :

1. This is an appeal from a decision and order of H.H. Judge Day given on 17th March this year. The decision was on a judgment summons and the order that the Judge made was that the Respondent do pay to the Petitioner the sum of US$52,500 arrears and the costs of the judgment summons dated 20th August 1997 of HK$730 at the rate of US$1 per month and that there be no order as to costs including costs reserved save the Petitioner's costs be taxed in accordance with the Legal Aid Regulations.

2. The real nub of this appeal is that the Petitioner, through her counsel, Mr. Clough, contends that the Court had really no option but to make an immediate order for committal of the Respondent. The matter arose in this way. There was, first of all, an order in February 1995 that the Respondent should pay the Petitioner HK$8,000 a month. Come December 1995, there was a consent order that the Respondent should pay the Petitioner US$5,000 per month. That order was made at a time when the Petitioner and the Respondent both appeared in person and at a time when, it has transpired, that the Respondent thought that he could pay that amount.

3. In June 1997, the decree nisi was made absolute and the maintenance pending suit order which had been made in December 1995 was ordered to "become" an interim maintenance order. On that occasion, the Petitioner was represented by solicitors and the Respondent was in person. The amount ordered to be paid per month remained at $5,000. The Respondent had, prior to that, taken out an application to vary the amount of the payments. But, of course, on the making of that order of June 1997, which was an order by consent although it was not specifically so stated, that application lapsed.

4. The matter came before the District Court in December 1997 and the Judge who dealt with the matter on that occasion varied the payment to US$3,400 per month. The case was then taken to the Court of Appeal. It was held that the Judge had no power to vary the order and so the matter was remitted again to the District Court for the hearing of the judgment summons.

5. Judge Day heard that summons. He not only had affidavits before him, but he had what he described as careful cross-examination of the Respondent as to his means by counsel on behalf of the Petitioner. The Judge made various findings. He found that the Respondent had been on occasions able to make payments but had spent money on other things. For example, in December 1996, the Respondent had spent money on Christmas presents for his present wife at a time when he was not paying money to the Petitioner. But in referring to that, the Judge pointed out that he regarded the Defendant as being an honest witness because he readily admitted that. The Judge also made a finding that he did not accept that the Respondent could not have cut back on some of his expenses between July 1996 and July 1997. He kept up a level of entertaining which could have been reduced and a house in Sai Kung for vacation purposes which was an extra expenditure.

6. As a result of that, the Judge came to a clear finding that the Respondent was in contempt. But he also said that having seen and heard the Respondent that he was of the view that the Respondent was not a person who had simply ignored the Court and he regarded that as highly relevant when considering whether or not committal was appropriate. The Judge said that the Respondent had applied to vary the order and he had attended every Court hearing and had supplied affidavits. The Judge said that the Respondent had been wrong not to re-arrange his priorities to pay maintenance, but that he was satisfied that now the Respondent had no means to pay and he was also satisfied that there was no purpose to be served in suspending any order for committal because there was virtually no income and such an order was in the Judge's words "out of the question". Therefore, the only matter which remained for the Judge to consider was whether there should be an immediate order for committal.

7. Mr. Clough has said everything that could be said on the Petitioner's behalf as to why such an order should be made. He has pointed out that by submitting to consent orders, the Respondent was in effect admitting and averring that at the time not only would he pay but that he could pay the maintenance to which he was consenting.

8. I have some doubts as to whether a consent order agreed to by a litigant in person could necessarily be taken that far. To my mind, one has to look at these matters in a reasonable light and I have no doubt that one should look upon it as the Respondent indicating to the Court that he has every intention of paying and considers that he will be able to pay but when matters go awry and he loses his sources of income, circumstances may change.

9. In my view, the Judge below considered the matter very carefully and came to the conclusion that no committal order should be made. I would not vary that order. I would however say this that the course that these proceedings have followed has not been the most expeditious and I would indeed echo the words of Judge Day when, on the application that was made to appeal to this Court out of time, he said :-

"This case has dragged on far too long. As far as I am aware, no date for a final ancillary relief hearing has yet been set down and yet here we have the Director of Legal Aid prepared to chase an impecunious man to the Court of Appeal."

10. It seems to me that the sooner these proceedings are brought to a conclusion by a proper hearing for the ancillary relief, the better. I have great sympathy for the Petitioner who clearly has received next to nothing in the way of maintenance having come from a marriage where clearly there was a degree of affluence.

11. But in the circumstances of this case, I do not see that it would be right for this Court to vary the order which the Judge came to and I would simply say that the matter should proceed as fast as possible with as few interlocutory applications as the parties can see fit to confine themselves to.

Godfrey, J.A. :

12. The judge found the husband to be in contempt but refused to commit him to prison. He explained why. I agree with the wife, who has had a very raw deal here, that the interests of justice are not well served by allowing a husband who has been held to be in contempt of an order of the court to escape the usual consequences of his contempt. But the punishment (if any) which the court imposes on a contemnor depends on all the circumstances of the case. The judge did not regard the husband's conduct here as contumelious and I am not persuaded that, on the materials before him, he was not entitled to come to that conclusion. In these circumstances, he was entitled to refuse to commit the husband to prison and there is no ground on which we can properly interfere with his decision.

13. For these reasons, I, too, would dismiss this appeal. We will order the costs of the wife of this appeal to be taxed for the purposes of the Legal Aid Regulations.